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District Court 19 July 2019

R v DN

[2019] NSWDC 536

Sexual offences

Citation: R v DN [2019] NSWDC 536
Court: District Court of NSW
Date: 19 July 2019
Judge: Grant DCJ

Background

The young person, who was 12 years old at the time of the offending and 14 at the time of sentencing, was committed for trial from the Bega Children's Court. He faced a series of charges under s 66A(1) of the Crimes Act 1900 (sexual intercourse with a child under 10 years), involving two child complainants: a neighbour's son and his own stepsister.

Pre-trial applications concerning the admissibility of admissions and tendency evidence were largely successful, which reduced the original eight-count indictment. The young person ultimately pleaded guilty to six counts covering fellatio and penile/anal penetration against the neighbour boy on two separate occasions, and cunnilingus against his stepsister on two occasions.

The offending came to light primarily because the young person himself disclosed it in written letters to a family friend and in admissions to family members. The case proceeded to a sentencing hearing in the District Court at Bega.

  • What discount, if any, was appropriate for the guilty plea given that it followed successful pre-trial applications rather than being entered at the first reasonable opportunity?
  • How should the principles in s 6 of the Children (Criminal Proceedings) Act 1987 be applied when sentencing a juvenile for a serious children's indictment offence carrying a maximum of life imprisonment?
  • Whether the threshold in s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (requiring imprisonment only when no other penalty is appropriate) had been crossed.
  • Whether the young person should be placed on the Child Protection Offenders Register under the Child Protection (Offenders Registration) Act 2000.

Decision

Grant DCJ applied a 15% discount for the guilty plea. Although it was not entered at the first reasonable opportunity, the plea carried significant utilitarian value because it spared the young complainants from giving evidence. The plea followed the successful resolution of pre-trial admissibility applications, which the court treated as the relevant context for fixing the discount.

On the objective seriousness of the offences, the court found each count to be objectively serious despite characterising each incident as opportunistic and involving no planning. The penetration and duration in several counts was of a brief nature, but the court did not treat brevity as diminishing the gravity of the offending under s 66A(1).

The court gave substantial weight to the s 6 principles under the Children (Criminal Proceedings) Act 1987. The young person's immaturity, his stable placement with his father and stepmother, his ongoing schooling at Bega High School, the importance of community reintegration, and his demonstrated acceptance of responsibility (including self-disclosure) all pointed away from imprisonment. Grant DCJ concluded that the threshold under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 had not been crossed and that a community corrections order was the appropriate response.

On the question of registration, the court considered the relevant matters under the Child Protection (Offenders Registration) Act 2000 and declared the young person to be a non-registrable person under that Act.

Orders Made

  • The young person was not convicted, pursuant to s 14 of the Children (Criminal Proceedings) Act 1987.
  • The young person was placed on a Community Corrections Order for three years, subject to the following conditions:
  • Must not commit any offence.
  • Must appear before a court if called upon.
  • Must submit to supervision by Juvenile Justice.
  • Must comply with the lawful directions of the senior psychologist, Family and Community Services (or her nominee), including completing programs as directed.
  • Must report to Juvenile Justice at Bega within seven days.
  • The young person was declared a non-registrable person under the Child Protection (Offenders Registration) Act 2000.

Key Takeaways

  • Under s 17 of the Children (Criminal Proceedings) Act 1987, a court dealing with a serious children's indictment offence must proceed "according to law" while still giving active consideration to the s 6 principles, including rehabilitation, reintegration, and continuity of education and home environment.
  • A guilty plea entered after successful pre-trial applications, rather than at the first opportunity, may still attract a meaningful discount (here, 15%) where it has genuine utilitarian value, such as protecting young complainants from giving evidence.
  • The District Court held that s 5(1) of the Crimes (Sentencing Procedure) Act 1999 applies in juvenile proceedings and requires a court to consider all alternatives to imprisonment before imposing a custodial sentence, even for offences carrying a maximum of life imprisonment.
  • Where a Form 1 is used in sentencing, sexual offences carrying a maximum of life imprisonment cannot lawfully be placed on that Form 1 under s 33(4)(b) of the Crimes (Sentencing Procedure) Act 1999. The court noted this in the context of correcting the original indictment structure.
  • A declaration of non-registrable person status under the Child Protection (Offenders Registration) Act 2000 remains available in juvenile matters and requires the court to turn its mind specifically to the considerations in that Act.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 66A(1)
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 6, 14, 17, 33B
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 21A(3)(k), 22, 33(4)(b)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Children (Community Service Orders) Act 1987 (NSW)
- Young Offenders Act 1997 (NSW)

Cases:
- Paul Campbell v R [2018] NSWCCA 87
- R v SDM (2001) 51 NSWLR 530
- Markarian v R [2005] HCA 25; 215 ALR 213
- KT v R (2008) 182 A Crim R 571
- MS2 and Ors v R [2005] NSWCCA 397
- R v Ellis (1986) 6 NSWLR 603
- R v GDP [2008] NSWCCA 51
- RP v R [2015] NSWCCA 215
- Slade v R [2005] NZCA 19
- Yardley v Betts 1 A Crim R 329
- R v Elliott and Blessington [2006] NSWCCA 305
- R v Voss [2003] NSWCCA 182